Court Leaning Toward Access to Civil Trials

The California Supreme Court on Thursday appeared to be leaning toward ruling that the public and the news media have the right to attend civil trials.

The U.S. Supreme Court already has established that right for criminal trials, and lower courts, including a state Court of Appeal, have held that the media cannot be barred from civil cases. But Los Angeles County has been fighting that ruling. The case stems from a 1996 order by Los Angeles County Superior Court Judge David M. Schacter that barred the media from portions of the palimony trial of actor Clint Eastwood and his former companion, actress Sondra Locke.

Eastwood and Locke, who did not request that the court be closed, reached an undisclosed settlement before the jury returned a verdict. The Supreme Court’s decision will have no effect on their highly publicized dispute.

But the case is important to the news media, litigants and trial judges because it will determine whether courtrooms can be closed again in future civil trials. Schacter ejected the public and the media from the Eastwood-Locke trial whenever arguments were made outside the jury’s presence. He said transcripts would be made available only after the trial ended.

Media outlets, including KNBC-TV and the Los Angeles Times, challenged Schacter’s order and won at the Court of Appeal. Los Angeles County proceeded to appeal the case to the state high court, arguing that judges should have the discretion to exclude the public and the media to ensure an impartial jury.

Assistant Los Angeles County Counsel Frederick R. Bennett told the court Thursday that Schacter had acted in the wake of “the intense frenzy of the O.J. Simpson trial” and barred the media as a “practical way” to prevent the jury from being tainted by outside publicity.

But Chief Justice Ronald M. George, during questioning, cited an 1872 state law that says courts should be public, and Justice Joyce L. Kennard pointed to a 1980 U.S. Supreme Court ruling in favor of media access.

“I hate to say it,” replied Bennett, but the U.S. Supreme Court “missed the ball.”

San Diego lawyer Leah Saffian, who worked as a barrister in England for 10 years, also argued on behalf of the Los Angeles County judge. She explained to the court, in a clipped British accent, why she thought English common law and 15th century cases favored ejecting the news media.

The justices appeared bemused by her presence. They repeatedly asked why they should be so concerned with English common law when they were governed by the precedents of American courts.

“Why wouldn’t it be sufficient to be guided by the decisions of the highest courts of this country?” Kennard asked.

The U.S. Supreme Court ruled in 1984 that the news media could not be barred from criminal trials unless “overriding” interests made closure necessary and reasonable alternatives to it were considered. The court also said that an order to close a courtroom must be narrowly tailored.

Kennard told Saffian that Americans give the 1st Amendment, which protects free speech, “an important place in this country” and reminded her that English law denies the media the right to publish anything from civil proceedings until after they end.

Justice Kathryn Mickle Werdegar, voicing similar sentiments, said the former barrister was carrying a “heavy burden” by asking the California Supreme Court to “all of a sudden find enlightenment” and disregard “what is now United States common law, if you will.”

Lawyers for the media argued that the 1st Amendment gives the public and the media access to both criminal and civil trials. The lawyers said they would prefer the court to rule for the media on constitutional grounds rather than on the basis of the 1872 law, in part because a state law can be changed by the Legislature.

Kennard, however, warned that a ruling that determines open civil trials to be a 1st Amendment right could have unintended consequences for other state laws, including one that bars the media from certain juvenile proceedings.

Justice Marvin Baxter asked whether allowing the public to attend trials helps prevent and expose judicial misconduct. With secret courtrooms, replied Kelli L. Sager, representing The Times, “even well-intentioned people might start abusing their power.”

NBC lawyer Anne H. Egerton, in response to a question from Justice Ming W. Chin, noted that the law has allowed some courtrooms to be closed in cases in which trade secrets are at issue. But she said the Eastwood case was different.

“The closure here was groundless and violated the law and the California and U.S. constitutions,” Egerton said.

Although the palimony “trial is over and we didn’t get in,” she said after the arguments ended, the California Supreme Court decision will at least “provide guidance to trial judges in the future.”

*** UNPUBLISHED NOTE ***

The second paragraph of this story refers to a palimony trial between Eastwood and Locke. In fact, the trial was over a contract dispute that stemmed from a palimony lawsuit Locke had previously filed and dropped against Eastwood.

*** END OF NOTE ***